In re T.C.K. , 2013 Ohio 3583 ( 2013 )

[Cite as In re T.C.K., 2013-Ohio-3583.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
IN THE MATTER OF:
:
T.C.K. : Case No. 13CA3
:
: DECISION AND JUDGMENT
: ENTRY
:
: RELEASED 08/12/2013
________________________________________________________________
APPEARANCES:
Amanda Keys, St. Marys, West Virginia, Pro Se Appellant.
________________________________________________________________
Hoover, J.
{¶ 1} Amanda Keys, the natural mother of T.C.K., appeals the trial court’s
decision that awarded legal custody of her child to April King, the child’s paternal aunt.
Appellant, appearing pro se, does not set forth assignments of error in accordance with
the Appellate Rules. We have attempted to discern some cognizable assignments of error
from the litany of Juvenile Rules that appellant cites. None of the cognizable
assignments of error have merit. Accordingly, we overrule appellant’s assignments of
error; and we affirm the trial court’s judgment.
I. FACTS
{¶ 2} On or about November 24, 2009, the trial court adjudicated T.C.K. a
dependent child and ordered the child to remain in appellant Amanda Key’s legal custody
under the protective supervision of Washington County Children Services’s (WCCS).
On April 16, 2010, the court terminated the order of protective supervision and placed the
child in appellant’s legal custody.
Washington App. No. 13CA3 2
{¶ 3} On April 26, 2012, April King, the child’s paternal aunt, filed a petition for
custody of the child.
{¶ 4} The court subsequently appointed a guardian ad litem for the child. The
guardian ad litem recommended that the court award King legal custody of the child.
{¶ 5} On December 14, 2012, the trial court determined that awarding King legal
custody of the child would serve the child’s best interests. In reaching its decision, the
court set forth the following facts:
[T.C.K.] is a 5 ½ year old boy currently in the temporary custody
of his paternal aunt, April King. Ms. King filed for custody on April 26,
2012, and this Court granted her temporary custody on April 27, 2012. At
the time of her filing, Ms. King had physical custody of [the child] for at
least a week after she picked the child up for an overnight visit and the
parents never came back for him.
This was not the first time that [the child] had lived with his aunt.
He lived with her from August 23, 2007, to April 11, 2009, due to both
parents being charged with and later convicted of felony charges in West
Virginia relating to the manufacturing of methamphetamine. West
Virginia Children Services as a result of the charges placed [the child]
with Ms. King. Rodney King [the child’s father] served approximately 2
years in prison on that charge and [appellant] served 120 days in the
county jail along with 5 years community control. After Mr. King’s
release from prison, the parents reconciled and [the child] returned to their
home in Newport, Ohio. The family resided in Newport, Ohio from April
Washington App. No. 13CA3 3
2009 until June of 2012. During this time the child moved back and forth
between Ms. King, the paternal grandparents and his parents. Between
Christmas 2011 and April 2012, when Ms. King obtained temporary
custody, the child resided with Ms. King a majority of the time.
The parents over the years failed to keep the child’s shots current.
He hadn’t been to his pediatrician for 3 years prior to Ms. King obtaining
temporary custody. They also failed to provide proper dental care for him.
He had a cavity that they neglected for 6 months to have filled which
caused him pain when eating. Ms. King has brought all shots current and
had his cavity filled.
Accordingly, [sic] to the testimony of family, neighbors and their
landlord, the parents fought regularly. They could be heard yelling and
screaming at each other all hours of the day. The children were generally
present during these fights. Some of the fights involved physical violence
between the parents.
In May 2012 the utilities to the parents’ home were disconnected
and in June they were evicted. After being evicted, the parents and the
other two children lived in tents during June and July 2012 in West
Virginia, before moving into a house in West Virginia. [The child] visited
his parents during the time they lived in the tents. During one of the visits
on July 21, 2012, the child was injured during a fight between his parents.
His father was hitting his mother and when he stepped between them his
father hit him in the head. The child reported this to Ms. King who
Washington App. No. 13CA3 4
immediately took him to the hospital because he was complaining of
headaches. West Virginia Children Services was contacted and an
investigation was undertaken. As a result of their investigation, [the
child’s] two half brothers were removed from the custody of their mother,
Amanda Keys by West Virginia authorities and placed in foster care on
August 1, 2012. [The child] was not removed since he was in the
temporary custody of April King and they were satisfied with his
placement since they had placed him with Ms. King back in 2007 to 2009
when the parents went to jail and prison on the drug charge. The worker
testified that if [the child] were returned to his parents by this Court that
they would immediately file for emergency removal of him. The removal
of the two boys by West Virginia was as a result of concerns of domestic
violence, physical and verbal abuse of all 3 children, and drug usage by
both parents in the presence of the children. As of this date, [the child’s]
half brothers still remain in foster care in West Virginia.
At the time of the child’s placement in the temporary custody of
April King in April 2012 his behavior was terrible. He was a very violent
and angry child. He was afraid his parents would return and take him
away. He was scared by the thought of going with them. He would hit
and cuss at people and talk about sex. He knew more about sex than a 5
year old should. Ms. King placed him in counseling. He sees a counselor
one time per week and is now on Adderall. His behavior as a result of the
counseling is much better now, although he still has some anger issues.
Washington App. No. 13CA3 5
According to the child’s guardian ad litem’s testimony in Court
and in his report, the child is scared by the thought of going back to his
parents and told the guardian ad litem they are mean. He told the guardian
ad litem that he desires to live with his aunt and stated that he would run
away if he were returned to his parents.
The guardian ad litem believes it would be in the best interest of
[the child] to be placed in the legal custody of his paternal aunt given all
the issues with his parents and the fact that he is bonded with April King
and she can provide a stable environment for the child.
{¶ 6} The court determined that the parents are unsuitable and that placing the
child in the parents’ custody would not be in the child’s best interests. The court
concluded that awarding King legal custody of the child would serve his best interests.
The court thus awarded King legal custody. Appellant timely appealed the trial court’s
judgment.
II. ASSIGNMENTS OF ERROR
{¶ 7} Appellant has not raised any assignments of error that comply with the
appellate rules. Instead, she lists eleven Juvenile Rules preceded by “Trial Court er [sic]”
or “Receiving agency er [sic].” We ordinarily afford considerable leniency to pro se
litigants and do not necessarily hold them to the same standards as attorneys. E.g., State
v. Ritchie, 4th Dist. No. 10CA20, 2011–Ohio–164, ¶5; Robb v. Smallwood, 165 Ohio
App.3d 385, 2005–Ohio–5863, 846 N.E.2d 878, ¶5 (4th Dist.); Whittington v. Kudlapur,
4th Dist. No. 01CA1, 2001–Ohio–2525. However, we will not “conjure up questions
never squarely asked or construct full-blown claims from convoluted reasoning.” State
Washington App. No. 13CA3 6
ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (1992). We will
consider a pro se litigant’s appellant’s brief so long as it “contains at least some
cognizable assignment of error.” Robb at ¶ 5; accord Coleman v. Davis, 4th Dist. No.
10CA5, 2011–Ohio–506, ¶14 (considering pro se litigant’s brief when it contains “some
semblance of compliance” with appellate rules of practice and procedure).
{¶ 8} In the case sub judice, we are tempted to dismiss this appeal based upon
appellant’s failure to comply with the appellate rules and to identify any cognizable
assignment of error. Appellant’s listing of a variety of Juvenile Rules does not tell us
precisely how she believes the trial court erred when applying the rules. However, we
have liberally construed appellant’s brief and believe some assignments of error can be
surmised. We explain and discuss each one below.
III.
ANALYSIS
A.
LACK OF TRANSCRIPT
{¶ 9} Before considering appellant’s assignments of error, we first note that the
record does not contain a transcript of the custody hearing. Although appellant requested
a transcript of the proceedings, the court reporter filed an affidavit in which he alleged
that he could not transcribe the proceedings due to a malfunction in the recording.
{¶ 10} App.R. 9(C) specifies the procedure an appellant may follow when a
transcript is unavailable: “If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer available for transcription, the
appellant may prepare a statement of the evidence or proceedings from the best available
Washington App. No. 13CA3 7
means, including the appellant’s recollection.” In Knapp v. Edwards Laboratories, the
court set forth the consequences of failing to provide a transcript or a statement of the
evidence: “When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings, and affirm.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶ 11} In the case at bar, without a transcript of the custody hearing or a
statement of the evidence, our review of appellant’s assignments of error is limited.
Absent an adequate record of the facts, testimony, and evidentiary matters necessary to
support appellant’s assignments of error, we have nothing to pass upon and are left with
no choice but to presume the validity of the proceedings and affirm trial court’s
judgment.
B.
Juv. R. 3
{¶ 12} Appellant contends that the trial court erred when applying Juv.R.
3(A)(1)(3), (B), and (D). Juv.R. 3 reads, in relevant part:
(A) A child’s right to be represented by counsel may not be waived in the
following circumstances:
(1) at a hearing conducted pursuant to Juv.R. 30;
****
(3) when there is a conflict or disagreement between the child and the
parent, guardian, or custodian; or if the parent, guardian, or custodian requests
that the child be removed from the home.
Washington App. No. 13CA3 8
(B) If a child is facing the potential loss of liberty, the child shall be
informed on the record of the child’s right to counsel and the disadvantages of
self-representation.
****
(D) Any waiver of the right to counsel shall be made in open court,
recorded, and in writing. In determining whether a child has knowingly,
intelligently, and voluntarily waived the right to counsel, the court shall look to
the totality of the circumstances including, but not limited to: the child’s age;
intelligence; education; background and experience generally and in the court
system specifically; the child’s emotional stability; and the complexity of the
proceedings. The Court shall ensure that a child consults with a parent, custodian,
guardian, or guardian ad litem, before any waiver of counsel. However, no
parent, guardian, custodian, or other person may waive the child’s right to
counsel.
{¶ 13} In the case at bar, appellant may be arguing that the trial court erred by
permitting the child to waive counsel or she may be arguing that the trial court erred by
determining that the child validly waived counsel. We reject both of these arguments.
{¶ 14} First, appellant does not have standing to appeal any error that may have
occurred with respect to the child’s waiver of counsel. As this court recognized in In re
Moody, 4th Dist. No. 00CA5 (June 28, 2001): “’An appealing party may complain of an
error committed against a non-appealing party when the error is prejudicial to the rights
of the appellant.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (1991)
(citations omitted). Thus, a parent has standing to appeal an error committed against a
Washington App. No. 13CA3 9
child when the parent and the child seek the same outcome, i.e., reunification of the
family. When a parent and child seek the same outcome, then an error “that is prejudicial
to the children’s interests in that outcome is similarly prejudicial to the parents’
interests.” Id.; accord In re S.S., 10th Dist. Nos. 12AP–322 and 12AP–323, 2012-Ohio-
4794, ¶26 (“Parents have standing to appeal an error committed against their children
only if the error is prejudicial to the parents’ rights.”); In re B.L., 10th Dist. No. 04AP–
1108, 2005–Ohio–1151, ¶ 44.
{¶ 15} In the case at bar, the trial court’s decision makes clear that appellant and
the child did not seek the same outcome. The trial court found that the child does not
want to be placed in appellant’s legal custody. On the other hand, appellant wishes to
have the child returned to her legal custody. Because appellant and the child did not seek
the same outcome, their interests are not aligned such that an error prejudicial to the child
also prejudiced appellant. In re Johnson, 10th Dist. Nos. 03AP-1264 and 03AP-1265.
2004-Ohio-3886, ¶13 (concluding that parent lacked standing to raise error relating to
deprivation of counsel to children when children wished to be adopted and thus interests
not aligned). Consequently, appellant lacks standing to raise an error relating to the
child’s waiver of counsel.
{¶ 16} Additionally, even if appellant has standing to assert this error, appellant
never raised any issue relating to the child’s right to or waiver of counsel during the trial
court proceedings. “Ordinarily, errors which arise during the course of a trial, which are
not brought to the attention of the court by objection or otherwise, are waived and may
not be raised upon appeal.” Stores Realty Co. v. City of Cleveland, Bd. of Bldg.
Standards and Bldg. Appeals, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975), citing
Washington App. No. 13CA3 10
Snyder v. Standford, 15 Ohio St.2d 31, 238 N.E.2d 563 (1968), and Oney v. Needham, 6
Ohio St.2d 154, 216 N.E.2d 625 (1966). An appellate court may recognize an error that
an appellant waived only if it constitutes plain error. E.g., In re Etter, 134 Ohio App.3d
484, 492, 731 N.E.2d 694 (1998). Courts should exercise extreme caution when invoking
the plain error doctrine, especially in civil cases. The Ohio Supreme Court has
admonished courts to limit applying the plain error doctrine to cases “involving
exceptional circumstances where error, to which no objection was made at the trial court,
seriously affects the basic fairness, integrity, or public reputation of the judicial process *
* *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).
{¶ 17} The case at bar does not involve exceptional circumstances and any error
regarding the child’s waiver of counsel did not seriously affect the basic fairness,
integrity, or public reputation of the judicial process. Accordingly, based upon the
foregoing reasons, we overrule this assignment of error.
C.
Juv. R. 4
{¶ 18} Appellant next asserts that the trial court erred when applying Juv.R.
4(A), (B)(4), (B)(5), (B)(7), and (B)(8). Those provisions state:
(A) Assistance of counsel
Every party shall have the right to be represented by counsel and
every child, parent, custodian, or other person in loco parentis the right to
appointed counsel if indigent. These rights shall arise when a person
becomes a party to a juvenile court proceeding. When the complaint
alleges that a child is an abused child, the court must appoint an attorney
Washington App. No. 13CA3 11
to represent the interests of the child. This rule shall not be construed to
provide for a right to appointed counsel in cases in which that right is not
otherwise provided for by constitution or statute.
(B) Guardian ad litem; when appointed
The court shall appoint a guardian ad litem to protect the interests
of a child or incompetent adult in a juvenile court proceeding when
***
(4) The court believes that the parent of the child is not capable of
representing the best interest of the child.
(5) Any proceeding involves allegations of abuse or neglect,
voluntary surrender of permanent custody, or termination of parental
rights as soon as possible after the commencement of such proceeding.
(6) There is an agreement for the voluntary surrender of temporary
custody that is made in accordance with section 5103.15 of the Revised
Code, and thereafter there is a request for extension of the voluntary
agreement.
(7) The proceeding is a removal action.
(8) Appointment is otherwise necessary to meet the requirements
of a fair hearing.
{¶ 19} We first observe that the court appointed a guardian ad litem for the child.
Thus, we summarily reject any argument that the trial court erred by failing to appoint a
guardian ad litem for the child.
Washington App. No. 13CA3 12
{¶ 20} It is not clear whether appellant is asserting that the trial court erred by
failing to appoint a guardian ad litem to represent her. To the extent that she is making
this assertion, she waived any error by failing to request the court to appoint a guardian
ad litem. Additionally, based upon the extremely limited record before this court, we
cannot state that the court committed plain error by failing to appoint a guardian ad litem
for appellant.
{¶ 21} To the extent appellant asserts that the trial court erred by failing to
appoint counsel to represent her or the child, neither appellant nor the child has a right to
appointed counsel in a private custody matter between a parent and a non-parent and in
which the state does not seek a termination of parental rights.
{¶ 22} Juv.R. 4(A) states that “[e]very party shall have the right to be represented
by counsel and every child, parent, custodian, or other person in loco parentis the right to
appointed counsel if indigent.” However, the rule further states that it does not create a
“right to appointed counsel in cases in which that right is not otherwise provided for by
constitution or statute.”
{¶ 23} R.C. 2151.352 governs the right to counsel in juvenile proceedings and
provides, in relevant part:
A child, the child’s parents or custodian, or any other person in
loco parentis of the child is entitled to representation by legal counsel at
all stages of the proceedings under this chapter or Chapter 2152. of the
Revised Code. If, as an indigent person, a party is unable to employ
counsel, the party is entitled to have counsel provided for the person
pursuant to Chapter 120. of the Revised Code except in civil matters in
Washington App. No. 13CA3 13
which the juvenile court is exercising jurisdiction pursuant to division
(A)(2) * * * of section 2151.23 of the Revised Code.
(Emphasis added).
{¶ 24} In the case sub judice, the juvenile court exercised jurisdiction pursuant to
R.C. 2151.23(A)(2). That section grants a juvenile court exclusive original jurisdiction
“to determine the custody of any child not a ward of another court of this state.” Because
the court exercised jurisdiction under R.C. 2151.23(A)(2), the civil-matter exception
specified in R.C. 2151.352 applies. Thus, neither appellant nor the child has a right to
appointed counsel. In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-2272, ¶12
(observing that parent not entitled to appointed counsel when court proceeding concerned
legal custody of children who are not wards of another court of this state); In re D.J.M.,
11th Dist. No. 2011-L-022, 2011-Ohio-6836, ¶35 (finding that father not entitled to
appointed counsel in proceeding brought under R.C. 2151.23(A)(2)); In re M.E.H., 4th
Dist. No. 08CA4, 2008-Ohio-3563, ¶12 (same).
{¶ 25} Accordingly, based upon the foregoing reasons, we overrule this
assignment of error.
D.
Juv.R. 6
{¶ 26} Next, appellant contends that the trial court erred when applying “Juv.R.
6(B)(C)(E)(2)(3)(G)(H)(J).” Juv.R. 6(C), (E)(2), (E)(3), (G), (H), and (J) are non-
existent. Juv.R. 6(B) states:
(B) Probable cause hearing
Washington App. No. 13CA3 14
When a child is taken into custody pursuant to an ex parte
emergency order pursuant to division (A)(3)(g) or (A)(4) of this rule, a
probable cause hearing shall be held before the end of the next business
day after the day on which the order is issued but not later than seventy-
two hours after the issuance of the emergency order.
{¶ 27} Appellant’s apparent argument is that the trial court erred by failing to
hold a probable cause hearing in accordance with Juv.R. 6(B). Juv.R. 6(B) requires a
probable cause hearing “[w]hen a child is taken into custody pursuant to an ex parte
emergency order pursuant to division (A)(3)(g) or (A)(4).” Those two provisions state:
(A) A child may be taken into custody:
****
(3) by a law enforcement officer or duly authorized officer of the
court when any of the following conditions exist:
****
(g) A juvenile judge or designated magistrate has found that there
is probable cause to believe any of the conditions set forth in division
(A)(3)(a), (b), or (c) of this rule are present, has found that reasonable
efforts have been made to notify the child’s parents, guardian ad litem or
custodian that the child may be placed into shelter care, except where
notification would jeopardize the physical or emotional safety of the child
or result in the child’s removal from the court's jurisdiction, and has
ordered ex parte, by telephone or otherwise, the taking of the child into
custody.
Washington App. No. 13CA3 15
(4) By the judge or designated magistrate ex parte pending the
outcome of the adjudicatory and dispositional hearing in an abuse, neglect,
or dependency proceeding, where it appears to the court that the best
interest and welfare of the child require the immediate issuance of a
shelter care order.
{¶ 28} The case at bar arose from King’s filing of a petition for legal custody.
When she filed the petition, she requested the court to award her temporary custody of
the child, which the court did. Nothing in the record indicates that a law enforcement
officer or duly authorized officer of the court removed the child from appellant’s custody.
Instead, according to the trial court’s decision, the child already had been staying with
King and the parents failed to contact King or pick up the child when scheduled.
Consequently, we do not find Juv.R. 6(B) applicable to the facts in the case sub judice.
{¶ 29} Even if Juv.R. 6(B) applies, appellant has not identified how the failure to
hold a probable cause hearing within the specified time prejudiced the outcome of the
case. Thus, any error that the trial court may have committed is harmless error that we
may disregard. Civ.R. 61.
{¶ 30} Accordingly, based upon the foregoing reasons, we overrule this
assignment of error.
E.
Juv.R. 17
{¶ 31} Appellant asserts that the trial court erred when applying “Juv.R.
17(D)(1)(2)(3)(a)(b)(c)(d)(4)(5)(E)(1)(2)(G).” Those provisions state:
(D) Protection of persons subject to subpoenas
Washington App. No. 13CA3 16
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena.
(2)(a) A person commanded to produce under division
(A)(1)(b)(ii), (iii), or (iv) of this rule is not required to appear in person at
the place of production or inspection unless commanded to attend and give
testimony at a trial, hearing, proceeding, or deposition.
(b) Subject to division (E)(2) of this rule, a person commanded to
produce under division (A)(1)(b)(ii), (iii), or (iv) of this rule may serve
upon the party or attorney designated in the subpoena written objections to
production. The objections must be served within fourteen days after
service of the subpoena or before the time specified for compliance if that
time is less than fourteen days after service. If objection is made, the party
serving the subpoena shall not be entitled to production except pursuant to
an order of the court that issued the subpoena. If objection has been made,
the party serving the subpoena, upon notice to the person commanded to
produce, may move at any time for an order to compel the production. An
order to compel production shall protect any person who is not a party or
an officer of a party from significant expense resulting from the
production commanded.
(3) On timely motion, the court from which the subpoena was
issued shall quash or modify the subpoena, or order appearance or
Washington App. No. 13CA3 17
production only under specified conditions, if the subpoena does any of
the following:
(a) Fails to allow reasonable time to comply;
(b) Requires disclosure of privileged or otherwise protected matter
and no exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an
expert not retained or specially employed by any party in anticipation of
litigation or preparation for trial if the fact or opinion does not describe
specific events or occurrences in dispute and results from study by that
expert that was not made at the request of any party;
(d) Subjects a person to undue burden.
(4) Before filing a motion pursuant to division (D)(3)(d) of this
rule, a person resisting discovery under this rule shall attempt to resolve
any claim of undue burden through discussions with the issuing attorney.
A motion filed pursuant to division (D)(3)(d) of this rule shall be
supported by an affidavit of the subpoenaed person or a certificate of that
person's attorney of the efforts made to resolve any claim of undue burden.
(5) If a motion is made under division (D)(3)(c) or (D)(3)(d) of this
rule, the court shall quash or modify the subpoena unless the party in
whose behalf the subpoena is issued shows a substantial need for the
testimony or material that cannot be otherwise met without undue hardship
and assures that the person to whom the subpoena is addressed will be
reasonably compensated.
Washington App. No. 13CA3 18
(E) Duties in responding to subpoena
(1) A person responding to a subpoena to produce documents shall,
at the person's option, produce the documents as they are kept in the usual
course of business or organized and labeled to correspond with the
categories in the subpoena. A person producing documents pursuant to a
subpoena for them shall permit their inspection and copying by all parties
present at the time and place set in the subpoena for inspection and
copying.
(2) When information subject to a subpoena is withheld on a claim
that it is privileged or subject to protection as trial preparation materials,
the claim shall be made expressly and shall be supported by a description
of the nature of the documents, communications, or things not produced
that is sufficient to enable the demanding party to contest the claim.
****
(G) Privileges
Nothing in this rule shall be construed to authorize a party to
obtain information protected by any privilege recognized by law or to
authorize any person to disclose such information.
{¶ 32} We are unable to discern a specific assignment of error from appellant’s
reference to Juv.R. 17. The reference is too general to enable us to determine what error
appellant alleges occurred. Therefore, we summarily overrule this assignment of error.
F.
Juv.R. 27
Washington App. No. 13CA3 19
{¶ 33} Appellant argues that the trial court erred when applying “Juv.R.
27(B)(1)(a)(b)(c)(2)(a)(b)(c)(3)(a)(b)(c).” Those provisions state:
(B) Special provisions for abuse, neglect, and dependency
proceedings
(1) In any proceeding involving abuse, neglect, or dependency at
which the court removes a child from the child’s home or continues the
removal of a child from the child’s home, or in a proceeding where the
court orders detention, the court shall determine whether the person who
filed the complaint in the case and removed the child from the child’s
home has custody of the child or will be given custody and has made
reasonable efforts to do any of the following:
(a) Prevent the removal of the child from the child’s home;
(b) Eliminate the continued removal of the child from the child’s
home;
(c) Make it possible for the child to return home.
(2) In a proceeding involving abuse, neglect, or dependency, the
examination made by the court to determine whether a child is a
competent witness shall comply with all of the following:
(a) Occur in an area other than a courtroom or hearing room;
(b) Be conducted in the presence of only those individuals
considered necessary by the court for the conduct of the examination or
the well being of the child;
Washington App. No. 13CA3 20
(c) Be recorded in accordance with Juv. R. 37 or Juv. R. 40. The
court may allow the prosecutor, guardian ad litem, or attorney for any
party to submit questions for use by the court in determining whether the
child is a competent witness.
(3) In a proceeding where a child is alleged to be an abused child,
the court may order that the testimony of the child be taken by deposition
in the presence of a judge or a magistrate. On motion of the prosecuting
attorney, guardian ad litem, or a party, or in its own discretion, the court
may order that the deposition be videotaped. All or part of the deposition
is admissible in evidence where all of the following apply:
(a) It is filed with the clerk;
(b) Counsel for all parties had an opportunity and similar motive at
the time of the taking of the deposition to develop the testimony by direct,
cross, or redirect examination;
(c) The judge or magistrate determines there is reasonable cause to
believe that if the child were to testify in person at the hearing, the child
would experience emotional trauma as a result of the child's participation
at the hearing.
{¶ 34} Juv.R. 27(B) applies to abuse, neglect, and dependency proceedings. The
trial court’s decision that awarded King legal custody did not arise from a complaint
alleging that the child is an abused, neglected, and dependent child. Instead, the court
awarded King legal custody based upon King’s filing of a complaint for legal custody.
Consequently, Juv.R. 27(B) is not applicable.
Washington App. No. 13CA3 21
{¶ 35} Accordingly, we overrule this assignment of error.
G.
Juv.R. 29
{¶ 36} Appellant asserts that the trial court erred when applying “Juv.R.
29(A)(B)(C)(D)(E)(F).” Those provisions state:
(A) Scheduling the hearing
The date for the adjudicatory hearing shall be set when the
complaint is filed or as soon thereafter as is practicable. If the child is the
subject of a complaint alleging a violation of a section of the Revised
Code that may be violated by an adult and that does not request a serious
youthful offender sentence, and if the child is in detention or shelter care,
the hearing shall be held not later than fifteen days after the filing of the
complaint. Upon a showing of good cause, the adjudicatory hearing may
be continued and detention or shelter care extended.
The prosecuting attorney’s filing of either a notice of intent to
pursue or a statement of an interest in pursuing a serious youthful offender
sentence shall constitute good cause for continuing the adjudicatory
hearing date and extending detention or shelter care.
The hearing of a removal action shall be scheduled in accordance
with Juv. R. 39(B).
If the complaint alleges abuse, neglect, or dependency, the hearing
shall be held no later than thirty days after the complaint is filed. For good
cause shown, the adjudicatory hearing may extend beyond thirty days
Washington App. No. 13CA3 22
either for an additional ten days to allow any party to obtain counsel or for
a reasonable time beyond thirty days to obtain service on all parties or
complete any necessary evaluations. However, the adjudicatory hearing
shall be held no later than sixty days after the complaint is filed.
The failure of the court to hold an adjudicatory hearing within any
time period set forth in this rule does not affect the ability of the court to
issue any order otherwise provided for in statute or rule and does not
provide any basis for contesting the jurisdiction of the court or the validity
of any order of the court.
(B) Advisement and findings at the commencement of the hearing
At the beginning of the hearing, the court shall do all of the
following:
(1) Ascertain whether notice requirements have been complied
with and, if not, whether the affected parties waive compliance;
(2) Inform the parties of the substance of the complaint, the
purpose of the hearing, and possible consequences of the hearing,
including the possibility that the cause may be transferred to the
appropriate adult court under Juv. R. 30 where the complaint alleges that a
child fourteen years of age or over is delinquent by conduct that would
constitute a felony if committed by an adult;
(3) Inform unrepresented parties of their right to counsel and
determine if those parties are waiving their right to counsel;
Washington App. No. 13CA3 23
(4) Appoint counsel for any unrepresented party under Juv. R. 4(A)
who does not waive the right to counsel;
(5) Inform any unrepresented party who waives the right to counsel
of the right: to obtain counsel at any stage of the proceedings, to remain
silent, to offer evidence, to cross-examine witnesses, and, upon request, to
have a record of all proceedings made, at public expense if indigent.
(C) Entry of admission or denial
The court shall request each party against whom allegations are
being made in the complaint to admit or deny the allegations. A failure or
refusal to admit the allegations shall be deemed a denial, except in cases
where the court consents to entry of a plea of no contest.
(D) Initial procedure upon entry of an admission
The court may refuse to accept an admission and shall not accept
an admission without addressing the party personally and determining
both of the following:
(1) The party is making the admission voluntarily with
understanding of the nature of the allegations and the consequences of the
admission;
(2) The party understands that by entering an admission the party
is waiving the right to challenge the witnesses and evidence against the
party, to remain silent, and to introduce evidence at the adjudicatory
hearing.
Washington App. No. 13CA3 24
The court may hear testimony, review documents, or make further
inquiry, as it considers appropriate, or it may proceed directly to the action
required by division (F) of this rule.
(E) Initial procedure upon entry of a denial
If a party denies the allegations the court shall:
(1) Direct the prosecuting attorney or another attorney-at-law to
assist the court by presenting evidence in support of the allegations of a
complaint;
(2) Order the separation of witnesses, upon request of any party;
(3) Take all testimony under oath or affirmation in either question-
answer or narrative form; and
(4) Determine the issues by proof beyond a reasonable doubt in
juvenile traffic offense, delinquency, and unruly proceedings; by clear and
convincing evidence in dependency, neglect, and abuse cases, and in a
removal action; and by a preponderance of the evidence in all other cases.
(F) Procedure upon determination of the issues
Upon the determination of the issues, the court shall do one of the
following:
(1) If the allegations of the complaint, indictment, or information
were not proven, dismiss the complaint;
(2) If the allegations of the complaint, indictment, or information
are admitted or proven, do any one of the following, unless precluded by
statute:
Washington App. No. 13CA3 25
(a) Enter an adjudication and proceed forthwith to disposition;
(b) Enter an adjudication and continue the matter for disposition
for not more than six months and may make appropriate temporary orders;
(c) Postpone entry of adjudication for not more than six months;
(d) Dismiss the complaint if dismissal is in the best interest of the
child and the community.
(3) Upon request make written findings of fact and conclusions of
law pursuant to Civ. R. 52.
(4) Ascertain whether the child should remain or be placed in
shelter care until the dispositional hearing in an abuse, neglect, or
dependency proceeding. In making a shelter care determination, the court
shall make written finding of facts with respect to reasonable efforts in
accordance with the provisions in Juv. R. 27(B)(1) and to relative
placement in accordance with Juv. R. 7(F)(3).
{¶ 37} Appellant’s argument that the trial court erred by failing to comply with
Juv.R. 29 is without merit. Juv. R. 29 applies to adjudicatory hearings. In the case at bar,
the decision that awarded King legal custody of appellant’s child arose from King’s filing
of a complaint for legal custody and not from a complaint that required the court to hold
an adjudicatory hearing, i.e., a complaint alleging that the child is delinquent, abused,
neglected, dependent, etc. Consequently, Juv.R. 29 does not apply.
{¶ 38} Accordingly, we overrule this assignment of error.
H.
Juv.R. 30
Washington App. No. 13CA3 26
{¶ 39} Appellant asserts that the court erred when applying “Juv.R.
30(A)(B)(C)(D)(E)(F)(G)(H).” Those provisions state:
(A) Preliminary hearing
In any proceeding where the court considers the transfer of a case
for criminal prosecution, the court shall hold a preliminary hearing to
determine if there is probable cause to believe that the child committed the
act alleged and that the act would be an offense if committed by an adult.
The hearing may be upon motion of the court, the prosecuting attorney, or
the child.
(B) Mandatory transfer
In any proceeding in which transfer of a case for criminal
prosecution is required by statute upon a finding of probable cause, the
order of transfer shall be entered upon a finding of probable cause.
(C) Discretionary transfer
In any proceeding in which transfer of a case for criminal
prosecution is permitted, but not required, by statute, and in which
probable cause is found at the preliminary hearing, the court shall continue
the proceeding for full investigation. The investigation shall include a
mental examination of the child by a public or private agency or by a
person qualified to make the examination. When the investigation is
completed, an amenability hearing shall be held to determine whether to
transfer jurisdiction. The criteria for transfer shall be as provided by
statute.
Washington App. No. 13CA3 27
(D) Notice
Notice in writing of the time, place, and purpose of any hearing
held pursuant to this rule shall be given to the state, the child's parents,
guardian, or other custodian and the child's counsel at least three days
prior to the hearing, unless written notice has been waived on the record.
(E) Retention of jurisdiction
If the court retains jurisdiction, it shall set the proceedings for
hearing on the merits.
(F) Waiver of mental examination
The child may waive the mental examination required under
division (C) of this rule. Refusal by the child to submit to a mental
examination or any part of the examination shall constitute a waiver of the
examination.
(G) Order of transfer
The order of transfer shall state the reasons for transfer.
(H) Release of child
With respect to the transferred case, the juvenile court shall set the
terms and conditions for release of the child in accordance with Crim. R.
46.
{¶ 40} Juv. R. 30 applies when a juvenile court considers whether to transfer a
delinquency complaint for criminal prosecution. Appellant has not asserted how Juv.R.
30 has any applicability to the case at bar, which involves legal custody. Moreover, we
Washington App. No. 13CA3 28
fail to see how Juv.R. 30 applies to the trial court’s decision that awarded King legal
custody.
{¶ 41} Accordingly, we overrule this assignment of error.
I.
Juv.R. 32
{¶ 42} Appellant contends that the court erred when applying “Juv.R.
32(A)(B)(C)(D).” Those provisions state:
(A) Social history and physical or mental examination: availability
before adjudication
The court may order and utilize a social history or physical or
mental examination at any time after the filing of a complaint under any of
the following circumstances:
(1) Upon the request of the party concerning whom the history or
examination is to be made;
(2) Where transfer of a child for adult prosecution is an issue in the
proceeding;
(3) Where a material allegation of a neglect, dependency, or
abused child complaint relates to matters that a history or examination
may clarify;
(4) Where a party’s legal responsibility for the party’s acts or the
party’s competence to participate in the proceedings is an issue;
(5) Where a physical or mental examination is required to
determine the need for emergency medical care under Juv. R. 13; or
Washington App. No. 13CA3 29
(6) Where authorized under Juv. R. 7(I).
(B) Limitations on preparation and use
Until there has been an admission or adjudication that the child
who is the subject of the proceedings is a juvenile traffic offender,
delinquent, unruly, neglected, dependent, or abused, no social history,
physical examination or mental examination shall be ordered except as
authorized under subdivision (A) and any social history, physical
examination or mental examination ordered pursuant to subdivision (A)
shall be utilized only for the limited purposes therein specified. The person
preparing a social history or making a physical or mental examination
shall not testify about the history or examination or information received
in its preparation in any juvenile traffic offender, delinquency, or unruly
child adjudicatory hearing, except as may be required in a hearing to
determine whether a child should be transferred to an adult court for
criminal prosecution.
(C) Availability of social history or investigation report
A reasonable time before the dispositional hearing, or any other
hearing at which a social history or physical or mental examination is to
be utilized, counsel shall be permitted to inspect any social history or
report of a mental or physical examination. The court may, for good cause
shown, deny such inspection or limit its scope to specified portions of the
history or report. The court may order that the contents of the history or
report, in whole or in part, not be disclosed to specified persons. If
Washington App. No. 13CA3 30
inspection or disclosure is denied or limited, the court shall state its
reasons for such denial or limitation to counsel.
(D) Investigation: allocation of parental rights and responsibilities
for the care of children; habeas corpus
On the filing of a complaint for the allocation of parental rights and
responsibilities for the care of children or for a writ of habeas corpus to
determine the allocation of parental rights and responsibilities for the care
of a child, or on the filing of a motion for change in the allocation of
parental rights and responsibilities for the care of children, the court may
cause an investigation to be made as to the character, health, family
relations, past conduct, present living conditions, earning ability, and
financial worth of the parties to the action. The report of the investigation
shall be confidential, but shall be made available to the parties or their
counsel upon written request not less than three days before hearing. The
court may tax as costs all or any part of the expenses of each investigation.
{¶ 43} Presumably, appellant’s argument is that the court should have ordered “a
social history or physical or mental examination” or “cause[d] an investigation to be
made as to the character, health, family relations, past conduct, present living conditions,
earning ability, and financial worth of the parties to the action.”
{¶ 44} We previously have discussed the discretionary nature of Juv.R. 32 and
stated:
Juv.R. 32(A) provides that the court may order and utilize a
physical or mental examination at any time after the filing of a complaint.
Washington App. No. 13CA3 31
The use of the word “may” is generally construed as optional, permissive
or discretionary. In re Fleming (1991), 76 Ohio App.3d 30, 38.
Analogously, it has been held that the right of an indigent criminal
defendant to an expert witness or a second medical examination is within
the discretion of the trial court. See State v. President (Apr. 21, 1993),
Lorain App. No. 92CA5408, unreported; State v. McFarland (Jan. 15,
1993), Muskingum App. No. CA-92-7, unreported; and State v. Tanner
(Dec. 31, 1991), Franklin App. Nos. 91AP-263 and 651 (all of these cases
citing Ake v. Oklahoma (1985), 470 U.S. 68). Based upon the foregoing,
as well as the parties’ citation of this standard of review on appeal, we
must determine if the trial court abused its discretion in overruling
appellant's motions for appointment of a medical expert and a defense
psychologist. An abuse of discretion involves more than an error of
judgment; it connotes an attitude on the part of the court that is
unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept.
v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington
Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120,
122. When applying the abuse of discretion standard, a reviewing court is
not free to merely substitute its judgment for that of the trial court. In re
Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews
(1990), 53 Ohio St.3d 161, 169.
In re Queen, 4th Dist. Nos. 93CA11 and 93CA12 (July 23, 1993).
Washington App. No. 13CA3 32
{¶ 45} In the case at bar, assuming that Juv.R. 32(A), (B), and (C) apply to a
private custody proceeding, we are unable to state that the trial court abused its discretion
by not ordering a social history or a mental or physical examination or by not ordering a
Juv.R. 32(D) investigation. The limited record before us does not indicate that the trial
court acted unreasonably, unconscionably, or arbitrarily by failing to order a social
history, a mental or physical examination or by failing to otherwise order an
investigation.
{¶ 46} Accordingly, based upon the foregoing reasons, we overrule this
assignment of error.
J.
Juv.R. 34
{¶ 47} Appellant argues that the trial court erred when applying “Juv.R.
34(A)(B)(C)(D)(E)(G)(I)(J).” Those provisions state:
(A) Scheduling the hearing
Where a child has been adjudicated as an abused, neglected, or
dependent child, the court shall not issue a dispositional order until after it
holds a separate dispositional hearing. The dispositional hearing for an
adjudicated abused, neglected, or dependent child shall be held at least one
day but not more than thirty days after the adjudicatory hearing is held.
The dispositional hearing may be held immediately after the adjudicatory
hearing if all parties were served prior to the adjudicatory hearing with all
documents required for the dispositional hearing and all parties consent to
the dispositional hearing being held immediately after the adjudicatory
Washington App. No. 13CA3 33
hearing. Upon the request of any party or the guardian ad litem of the
child, the court may continue a dispositional hearing for a reasonable time
not to exceed the time limit set forth in this division to enable a party to
obtain or consult counsel. The dispositional hearing shall not be held more
than ninety days after the date on which the complaint in the case was
filed. If the dispositional hearing is not held within this ninety day period
of time, the court, on its own motion or the motion of any party or the
guardian ad litem of the child, shall dismiss the complaint without
prejudice.
In all other juvenile proceedings, the dispositional hearing shall be
held pursuant to Juv. R. 29(F)(2)(a) through (d) and the ninety day
requirement shall not apply. Where the dispositional hearing is to be held
immediately following the adjudicatory hearing, the court, upon the
request of any party, shall continue the hearing for a reasonable time to
enable the party to obtain or consult counsel.
(B) Hearing procedure
The hearing shall be conducted in the following manner:
(1) The judge or magistrate who presided at the adjudicatory
hearing shall, if possible, preside;
(2) Except as provided in division (I) of this rule, the court may
admit evidence that is material and relevant, including, but not limited to,
hearsay, opinion, and documentary evidence;
Washington App. No. 13CA3 34
(3) Medical examiners and each investigator who prepared a social
history shall not be cross-examined, except upon consent of all parties, for
good cause shown, or as the court in its discretion may direct. Any party
may offer evidence supplementing, explaining, or disputing any
information contained in the social history or other reports that may be
used by the court in determining disposition.
(C) Judgment
After the conclusion of the hearing, the court shall enter an
appropriate judgment within seven days. A copy of the judgment shall be
given to any party requesting a copy. In all cases where a child is placed
on probation, the child shall receive a written statement of the conditions
of probation. If the judgment is conditional, the order shall state the
conditions. If the child is not returned to the child's home, the court shall
determine the school district that shall bear the cost of the child's
education and may fix an amount of support to be paid by the responsible
parent or from public funds.
(D) Dispositional Orders
Where a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of disposition:
(1) Place the child in protective supervision;
(2) Commit the child to the temporary custody of a public or
private agency, either parent, a relative residing within or outside the state,
Washington App. No. 13CA3 35
or a probation officer for placement in a certified foster home or approved
foster care;
(3) Award legal custody of the child to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting
legal custody;
(4) Commit the child to the permanent custody of a public or
private agency, if the court determines that the child cannot be placed with
one of the child's parents within a reasonable time or should not be placed
with either parent and determines that the permanent commitment is in the
best interest of the child;
(5) Place the child in a planned permanent living arrangement with
a public or private agency if the agency requests the court for placement, if
the court finds that a planned permanent living arrangement is in the best
interest of the child, and if the court finds that one of the following exists:
(a) The child because of physical, mental, or psychological
problems or needs is unable to function in a family-like setting;
(b) The parents of the child have significant physical, mental or
psychological problems and are unable to care for the child, adoption is
not in the best interest of the child and the child retains a significant and
positive relationship with a parent or relative;
(c) The child is sixteen years of age or older, has been counseled,
is unwilling to accept or unable to adapt to a permanent placement and is
in an agency program preparing the child for independent living.
Washington App. No. 13CA3 36
(E) Protective supervision
If the court issues an order for protective supervision, the court
may place any reasonable restrictions upon the child, the child's parents,
guardian, or any other person including, but not limited to, any of the
following:
(1) Ordering a party within forty-eight hours to vacate the child's
home indefinitely or for a fixed period of time;
(2) Ordering a party, parent, or custodian to prevent any particular
person from having contact with the child;
(3) Issuing a restraining order to control the conduct of any party.
****
(G) Modification of temporary order
The department of human services or any other public or private
agency or any party, other than a parent whose parental rights have been
terminated, may at any time file a motion requesting that the court modify
or terminate any order of disposition. The court shall hold a hearing upon
the motion as if the hearing were the original dispositional hearing and
shall give all parties and the guardian ad litem notice of the hearing
pursuant to these rules. The court, on its own motion and upon proper
notice to all parties and any interested agency, may modify or terminate
any order of disposition.
****
(I) Bifurcation; Rules of Evidence
Washington App. No. 13CA3 37
Hearings to determine whether temporary orders regarding custody
should be modified to orders for permanent custody shall be considered
dispositional hearings and need not be bifurcated. The Rules of Evidence
shall apply in hearings on motions for permanent custody.
(J) Advisement of rights after hearing
At the conclusion of the hearing, the court shall advise the child of
the child's right to record expungement and, where any part of the
proceeding was contested, advise the parties of their right to appeal.
{¶ 48} As we previously noted, the case at bar did not involve a complaint
alleging that the child is abused, neglected, dependent, delinquent, etc. Thus, the
dispositional hearing provisions applicable to those types of proceedings do not apply to
the case sub judice, which involves a petition for legal custody.
{¶ 49} Accordingly, based upon the foregoing reasons, we overrule this
assignment of error.
K.
Juv.R. 36
{¶ 50} Appellant asserts that the trial court erred when applying “Juv.R.
36(A)(C)(1)(2)(3)(4).” Those provisions state:
(A) Court review
A court that issues a dispositional order in an abuse, neglect, or
dependency case may review the child’s placement or custody
arrangement, the case plan, and the actions of the public or private agency
implementing that plan at any time. A court that issues a dispositional
Washington App. No. 13CA3 38
order shall hold a review hearing one year after the earlier of the date on
which the complaint in the case was filed or the child was first placed into
shelter care. The court shall schedule the review hearing at the time that it
holds the dispositional hearing. The court shall hold a similar review
hearing no later than every twelve months after the initial review hearing
until the child is adopted, returned to the child's parents, or the court
otherwise terminates the child's placement or custody arrangement. A
hearing pursuant to section 2151.415 of the Revised Code shall take the
place of the first review hearing. The court shall schedule each subsequent
review hearing at the conclusion of the review hearing immediately
preceding the review hearing to be scheduled. Review hearings may also
be conducted by a magistrate.
****
(C) Agency review
Each agency required to prepare a case plan for a child shall
complete a semiannual administrative review of the case plan no later than
six months after the earlier of the date on which the complaint in the case
was filed or the child was first placed in shelter care. After the first
administrative review, the agency shall complete semiannual
administrative reviews no later than every six months. The agency shall
prepare and file a written summary of the semiannual administrative
review that shall include an updated case plan. If the agency, parents,
guardian, or custodian of the child and guardian ad litem stipulate to the
Washington App. No. 13CA3 39
revised case plan, the plan shall be signed by all parties and filed with the
written summary of the administrative review no later than seven days
after the completion of the administrative review. If the court does not
object to the revised case plan, it shall journalize the case plan within
fourteen days after it is filed with the court. If the court does not approve
of the revised case plan or if the agency, parties, guardian ad litem, and the
attorney of the child do not agree to the need for changes to the case plan
and to all of the proposed changes, the agency shall file its written
summary and request a hearing. The court shall schedule a review hearing
to be held no later than thirty days after the filing of the case plan or
written summary or both, if required. The court shall give notice of the
date, time, and location of the hearing to all interested parties and the
guardian ad litem of the child. The court shall take one of the following
actions:
(1) Approve or modify the case plan based upon the evidence
presented;
(2) Return the child home with or without protective supervision
and terminate temporary custody or determine which agency shall have
custody;
(3) If the child is in permanent custody determine what actions
would facilitate adoption;
(4) Journalize the terms of the updated case plan.
Washington App. No. 13CA3 40
{¶ 51} Juv.R. 34 applies in abuse, neglect, and dependency cases. As we already
explained, the case at bar is not an abuse, neglect, and dependency case. Thus,
appellant’s assertion that the trial court erred by failing to comply with Juv.R. 34 is
without merit.
{¶ 52} Accordingly, based upon the foregoing reasons, we overrule this
assignment of error.
L.
Juv.R. 38
{¶ 53} Appellant contends that the trial court erred when applying “Juv.R.
38(A)(B).” Those provisions state:
(A) Temporary custody
(1) A person with custody of a child may enter into an agreement
with any public or private children services agency giving the agency
temporary custody for a period of up to thirty days without the approval of
the juvenile court. The agency may request the court to grant a thirty day
extension of the original agreement. The court may grant the original
extension if it determines the extension to be in the best interest of the
child. A case plan shall be filed at the same time the request for extension
is filed. At the expiration of the original thirty day extension period, the
agency may request the court to grant an additional thirty day extension.
The court may grant the additional extension if it determines the extension
is in the child's best interest. The agency shall file an updated case plan at
the same time it files the request for additional extension. At the expiration
Washington App. No. 13CA3 41
of the additional thirty day extension period, or at the expiration of the
original thirty day extension period if no additional thirty day extension
was requested, the agency shall either return the child to the custodian or
file a complaint requesting temporary or permanent custody and a case
plan.
(2) Notwithstanding division (A)(1) of this rule, the agreement
may be for a period of sixty days if executed solely for the purpose of
obtaining the adoption of a child less than six months of age. The agency
may request the court to extend the temporary custody agreement for
thirty days. A case plan shall be filed at the same time the request for
extension is filed. At the expiration of the thirty day extension, the agency
shall either return the child to the child’s custodian or file a complaint with
the court requesting temporary or permanent custody and a case plan.
(B) Permanent custody
(1) A person with custody of a child may make an agreement with
court approval surrendering the child into the permanent custody of a
public children service agency or private child placing agency. A public
children service agency shall request and a private child placing agency
may request the juvenile court of the county in which the child had
residence or legal settlement to approve the permanent surrender
agreement. The court may approve the agreement if it determines it to be
in the best interest of the child. The agency requesting the approval shall
Washington App. No. 13CA3 42
file a case plan at the same time it files its request for approval of the
permanent surrender agreement.
(2) An agreement for the surrender of permanent custody of a child
to a private service agency is not required to be approved by the court if
the agreement is executed solely for the purpose of obtaining an adoption
of a child who is less than six months of age on the date of the execution
of the agreement.
One year after the agreement is entered and every subsequent
twelve months after that date, the court shall schedule a review hearing if a
final decree of adoption has not been entered for a child who is the subject
of an agreement for the surrender of permanent custody.
{¶ 54} We are unable to discern an assignment of error from appellant’s citation
to this rule. Accordingly, we summarily overrule this assignment of error.
M.
Juv.R. 11 and 14
{¶ 55} Appellant states in her “conclusion:” “Modify custody granting April
King physical custody, WVDHHR Children Services temporary custody, concurrent
jurisdiction of courts pending propper [sic] disposition of propper [sic] proceedings.”
She further requests the following motions: “Juv.R. 11(A)(B)(C)(D)[;] Juv.R. 14(A)(B)[;
and] Juv.R. 14(6)(B) [sic.]”
{¶ 56} “As an appellate court, we [ordinarily] do not consider arguments that the
trial court did not address.” State ex rel. A.F. Krainz Co., L.L.C. v. Jackson, 8th Dist.
Cuyahoga No. 98104, 2012-Ohio-5072, ¶12, citing Roush v. Butera, 8th Dist. No. 97463,
Washington App. No. 13CA3 43
2012–Ohio–2506, and Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138(1992). As we explained in Cruse v. Finley, 4th Dist. Lawrence App. No. 12CA2, 2012-
Ohio-5465, ¶20:
‘In light of the Ohio Supreme Court's determination in Murphy v.
Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d 138, we, as an
appellate court, should not first consider an argument that the trial court
did not address.’ Lang v. Holly Hill Motel, Inc., 4th Dist. No. 05CA6,
2005–Ohio–6766, ¶ 22. The Murphy court stated the following: ‘A
reviewing court, even though it must conduct its own examination of the
record, has a different focus than the trial court. If the trial court does not
consider all the evidence before it, an appellate court does not sit as a
reviewing court, but, in effect, becomes a trial court.’ Murphy at 360.
{¶ 57} Consequently, because the trial court did not consider whether to grant
appellant’s Juv.R. 11 and Juv.R. 14 motions, we decline to do so in the first instance.
IV.
CONCLUSION
{¶ 58} Accordingly, based upon the foregoing reasons, we overrule all of
appellant’s assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Washington App. No. 13CA3 44
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court Juvenile Division to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment Only as to Subsection M; Concurs in Judgment and
Opinion as to the remainder of the Opinion.
McFarland, P.J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.